Aggravated Felonies
Summary Table of Contents
Appendix F. Non-Substantive Offenses
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Appendix F:
Non-Substantive Offenses
Table of Contents
§ 1 Grounds that List No Non-Substantive Offenses............................ 869
§ 2 Aiding and abetting is expressly included only in the
following grounds:............................................................................... 870
§ 3 Attempt is expressly included in the following grounds:.............. 872
§ 4 Conspiracy is expressly included in the following grounds:........ 872
§ 5 Solicitation is expressly listed in the following grounds:.............. 873
§ 6 Threat..................................................................................................... 873
§ 7 Other Non-Substantive Offenses....................................................... 873
§ 8 Non-Substantive Offense Chart......................................................... 874
§ 9 Inadmissibility Grounds...................................................................... 875
§ 10 Deportability Grounds........................................................................ 876
Crime-related grounds of inadmissibility and deportability do not invariably include non-substantive offenses, such as attempt or conspiracy to commit a listed offense, that can apply to any substantive offense. This gives rise to the argument that when Congress lists some non-substantive offenses, but not others, the unlisted ones do not trigger deportation under that ground. Congress knew how to list them when it wanted to do so, and when it did not list them, it did not include them within the ground of deportation or inadmissibility. See § 3.15, supra.
Congress more frequently included non-substantive offenses in grounds of inadmissibility, but many grounds of deportation do not list any non-substantive offenses and are thus limited to the substantive offenses that are described in the deportation ground.
§ 1 Grounds that List No Non-Substantive Offenses
The following grounds of deportation do not list any non-substantive offenses, not even attempt or conspiracy:
(1) One CMT conviction
(2) Multiple CMT convictions
(3) High speed flight conviction
(4) Domestic violence conviction
(5) Failure to register conviction
(6) Visa fraud conviction
(7) Unlawful voting conduct
Therefore, attempt, conspiracy, solicitation, aiding and abetting, accessory after the fact, misprision of a felony, facilitation, threat, and any other non-substantive offenses do not trigger deportation under these grounds of deportation.
In contrast, only the prostitution ground of inadmissibility fails to list any non-substantive offenses as triggering inadmissibility.
Rationale: (1) It is easier to exclude someone from the United States, and harder to deport someone. It therefore makes sense to include more non-substantive offenses for grounds of inadmissibility. Non-substantive offenses are less serious in general than the substantive offenses, so there is less reason to make them trigger deportation.
(2) Congress treats less serious crimes more leniently. For example, many attempt statutes provide the maximum sentence is one-half that for the substantive offense. Congress also imposes less serious immigration penalties for less serious offenses. For example, there is no mandatory detention for Crimes of Moral Turpitude, Domestic Violence, border chase grounds of deportation, etc.
§ 2 Aiding and abetting is expressly included only in the following grounds:
Grounds of Inadmissibility:
(4) Reason to Believe Conduct
(6) Trafficker in Persons Conduct
(7) Money Laundering Conduct
(9) Genocide Conduct
(11) Alien Smuggling Conduct
(13) Assist Child Abductor Conduct
Grounds of Deportation:
(1) Alien Smuggling Conduct
(15) Genocide Conduct
Therefore, aiding and abetting convictions are not included in any other ground of deportation or inadmissibility.
By contrast, Congress did list aiding and abetting in certain other grounds of deportation[1] and inadmissibility.[2]
INA § 212(a)(2)(C)(i) (reason to believe illicit trafficker ground of inadmissibility: “Any alien who the consular officer or the Attorney General knows or has reason to believe -- (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so . . . is inadmissible.”) (emphasis supplied); INA § 212(a)(2)(H)(i) (trafficker in persons ground of inadmissibility: “Any alien who is listed in a report submitted pursuant to section 7108(b) of Title 22, or who the consular officer or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 7102 of Title 22, is inadmissible.”) (emphasis supplied); INA § 212(a)(2)(I) (money laundering ground of inadmissibility: “knowing aider, abettor, assister, conspirator, or colluder with others”); INA § 237(a)(4)(D) (genocide conduct ground of inadmissibility); INA § 212(a)(6)(E) (alien smuggling conduct ground of inadmissibility: “encouraged, induced, assisted, abetted, or aided”); INA § 212(a)(10)(C)(ii) (assister of child abductor ground of inadmissibility).
INA § 237(a)(1)(E)(i) (alien smuggling conduct ground of deportation: “Any noncitizen who: before, at or within five years after any entry, knowingly encouraged, induced, assisted, abetted, or aided any other noncitizen to enter or try to enter the United States in violation of law.” (Emphasis supplied)); INA § 237(a)(4)(D) (genocide conduct ground of deportation).
§ 3 Attempt is expressly included in the following grounds:
Grounds of Inadmissibility:
(1) CMT Conviction
(2) Drug Conviction
(3) Multiple Conviction
(4) Reason to Believe Conduct
(5b) Procure Conduct
(8) Terrorist Conduct
(10) Visa Fraud Conduct ?
(11) Alien Smuggling Conduct
(12) Document Fraud Civil Penalty – partial
Grounds of Deportation:
(4) Aggravated Felony
(6) Controlled Substances
(7) Firearms
(8) Miscellaneous (sedition, etc.)
(11) Foreign Agent Reg. Act
(13) Doc. Fraud Civil Penalty – partial
(14) Terrorist Conduct
Therefore, attempt convictions are not included in any other ground of deportation.
§ 4 Conspiracy is expressly included in the following grounds:
Grounds of Inadmissibility:
(1) CMT Conviction
(2) Drug Conviction
(3) Multiple Conviction
(4) Reason to Believe Conduct
(6) Trafficker in Persons Conduct
(7) Money Laundering Conduct
(8) Terrorist Conduct
Grounds of Deportation:
(4) Aggravated Felony
(5a) Prostitution Conduct
(6) Controlled Substances
(7) Firearms
(8) Miscellaneous (sedition, etc.)
(11) Foreign Agent Reg. Act
(14) Terrorist Conduct
Therefore, conspiracy convictions are not included in any other ground of deportation.
§ 5 Solicitation is expressly listed in the following grounds:
Grounds of Inadmissibility:
(3) Multiple Conviction
(8) Terrorist Conduct
(9) Genocide Conduct
(11) Alien Smuggling Conduct
Grounds of Deportation:
(1) Alien Smuggling Conduct
(7) Firearms – (sale only)
(14) Terrorist Conduct
(15) Genocide Conduct
Therefore, soliciting convictions (aka convictions of offering to commit a certain offense)[3] are not included in any other ground of deportation or inadmissibility.
Convictions of threatening to commit a substantive offense are listed in the following grounds:
Ground of Inadmissibility:
(8) Terrorist Conduct
Ground of Deportation:
(14) Terrorist Conduct
In addition, threat to use force is expressly listed in the crime of violence aggravated felony definition.[4]
§ 7 Other Non-Substantive Offenses
Accessory after the fact, misprision of a felony, and facilitation are not listed anywhere. These are only included in inadmissibility (3) multiple convictions, which includes all convictions without limitation.
§ 8 Non-Substantive Offense Chart
The following Chart lists various grounds of Inadmissibility, and Deportability, and indicates whether each ground specifically includes various non-substantive offenses, such as attempt, aiding and abetting, conspiracy, solicitation, and the like. For example, the CMT ground of inadmissibility specifically lists attempt and conspiracy, but no other non-substantive offenses. The number of the ground of inadmissibility, e.g., (1) CMT Conviction, indicates where on the following pages the exact statutory text of the non-substantive offense language of the ground appears.
INADMISSIBILITY DEPORTABILITY
(1) CMT Conviction – AT, CO (1) Alien Smuggling Conduct – AB, SO
(2) Drug Conviction – AT, CO (2) CMT Conviction
(3) Multiple Conviction – ALL (3) Multiple CMT Conviction
(4) Reason to Believe Conduct – AB, CO (4) Aggravated Felony – AT, CO
(5a) Prostitution Conduct (5) High Speed Flight Conviction
(5b) Procure Conduct – AT (6) Controlled Substances – AT, CO
(6) Trafficker in Persons Conduct – AB, CO (7) Firearms – AT, CO, SO (sale only)
(7) Money Laundering Conduct – AB, CO (8) Miscellaneous (sedition, etc.) – AT, CO
(8) Terrorist Conduct – AT, CO, threat, SO (9) Domestic Violence Conviction
(9) Genocide Conduct – AB, SO, + ? (10) Failure to Register Conviction
(10) Visa Fraud Conduct – AT? (11) Foreign Agent Reg. Act – AT, CO
(11) Alien Smuggling Conduct – AB, AT, SO (12) Visa Fraud Conviction
(12) Document Fraud Civil Penalty – AT partial (13) Doc. Fraud Civil Penalty – AT partial
(13) Assist Child Abductor Conduct – AB (14) Terrorist Conduct – AT, CO, threat, SO
(15) Genocide Conduct – AB, SO, + ?
(16) Unlawful Voting Conduct
KEY:
AB = Aiding and abetting
CO = Conspiracy
AT = Attempt
SO = Solicitation
Threat = Threat to X
Partial = Only one of a number of listed
Offenses is listed (e.g. – offer to sell excludes
Offer to do something else)
+ = more
NOTE: Accessory after the fact, misprision of a felony, and facilitation are not listed anywhere. These are only included in inadmissibility (3) multiple convictions, which includes all convictions without limitation.
(1) CMT Conviction Inadmissibility
“or an attempt or conspiracy to commit such a crime” 212(a)(2)(A)(i)(I)
AT, CO
(2) Controlled Substance Conviction
“(or a conspiracy or attempt to violate) any law…relating to a controlled substance….” 212(a)(2)(A)(i)(II)
AT, CO
(3) Multiple Conviction Inadmissibility
Based on convictions for “offenses” regardless of single scheme or CMT – attempt and conspiracy not listed but “offenses” is unrestricted and therefore does not exclude attempt or conspiracy conviction 212(a)(2)(B)
AA, MF, AT, CO, AE, SO (though not express), ALL
(4) Illicit Trafficker Conduct Inadmissibility
“or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking…” 212(a)(2)(C)
– lists conspirator and aider and abettor
– does not list attempt
AB, CO
(5) Prostitution and Commercialized Vice Conduct Inadmissibility
(5a) Engaged in prostitution 212(a)(2)(D)(i)
– does not list attempt or conspiracy or aider
(5b) Procures “or attempts to procure” 212(a)(2)(D)(ii)
– no conspiracy or aiding but “directly or indirectly”
AT
(6) Trafficker In Persons Conduct Inadmissibility
“has been a knowing aider, abettor, assister, conspirator, or colluder” 212(a)(2)(H)(i)
AB, CO
(7) Money Laundering Conduct Inadmissibility
“or seeks to enter the United States to engage” 212(a)(2)(I)(i)
“or has been, a knowing aider, abettor, assister, conspirator, or colluder” 212(a)(2)(I)(ii)
AB, CO
(8) Terrorist Conduct Inadmissibility
“A threat, attempt, or conspiracy to do any of the foregoing.” 212(a)(3)(B)(iii)(VI)
AT, CO, threat
“to solicit any individual – (aa) to engage in conduct otherwise described in this clause” 212(a)(3)(B)(iv)(V)(aa)
SO
(9) Genocide Conduct Inadmissibility
“ordered, incited, assisted, or otherwise participated in” 212(a)(3)(B)(i)
SO, AB, + ?
(10) Visa Fraud Conduct Inadmissibility
“seeks to procure” 212(a)(6)(C)(i)
AT?
(11) Alien Smuggling Conduct Inadmissibility
“knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter” 212(a)(6)(E)(i)
SO, AB, AT
(12) Document Fraud Order Inadmissibility
212(a)(6)(F)(i), 274C
“to use, attempt to use, possess” etc. any false document 274C(a)(2) AT partial
“to use or attempt to use or to provide or attempt to provide any document” issued to someone else 274C(a)(3)
“to prepare, file or assist another” 274C(a)(5)
(13) Alien Assisting Child Abductors Conduct Inadmissibility
“intentionally assisted” in international child abduction 212(a)(10)(C)(ii)(I)
AB
(1) Alien Smuggling Conduct Deportability
“knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law” 237(a)(1)(E)(i)
SO, AB
(2) CMT Conviction Deportability
no mention of attempt or conspiracy or solicitation 237(a)(2)(A)(i)
(3) Multiple CMT Conviction Deportability
no mention of attempt or conspiracy or solicitation 237(a)(2)(A)(ii)
(4) Aggravated Felony Conviction Deportability
no mention of attempt, conspiracy, or solicitation 237(a)(2)(A)(iii) but aggravated felony definition includes “an attempt or conspiracy to commit an offense described in this paragraph” 101(a)(43)(U)
AT, CO
(5) High Speed Flight Conviction Deportability
no mention of collateral offense 237(a)(2)(A)(iv)
(6) Controlled Substances Conviction Deportability
“(or a conspiracy or attempt to violate)” a law relating to a controlled substance 237(a)(2)(B)(i)
AT, CO
(7) Firearms Conviction Deportability
“offering for sale…or of attempting or conspiring to purchase, sell, offer for sale [etc.]” 237(a)(2)(C)
SO, partial, AT, CO, case law
(8) Miscellaneous Conviction Deportability
“or has been so convicted of a conspiracy or attempt to violate” 237(a)(2)(D)
(espionage, sabotage, treason, sedition, etc.)
AT, CO
(9) Domestic Violence Conviction/Court Finding Deportability
no mention of attempt, conspiracy, solicitation, etc. 237(a)(I)(i), (ii)
(10) Failure to Register Conviction Deportability
No mention of attempt or conspiracy. 237(a)(3)(B)(i).
Compare (ii) and (iii), each of which includes “or an attempt or a conspiracy to violate.”
(11) Foreign Agents Registration Act Conviction Deportability
“or an attempt or a conspiracy to violate” 237(a)(3)(B)(ii)
AT, CO
(12) Visa Fraud Conviction Deportability
“or an attempt or a conspiracy to violate” 237(a)(3)(B)(iii)
AT, CO
(13) Document Fraud Civil Order Deportability
See Inadmissibility (12) supra. 237(a)(3)(C)(i)
AT, partial
(14) Terrorist Conduct Deportability
See Inadmissibility (8) supra. 237(a)(4)(B).
AT, CO, threat, SO
(15) Genocide Conduct Deportability
See Inadmissibility (9) supra.
SO, AB, + ?
(16) Unlawful Voting Conduct Deportability
no mention of attempt or conspiracy 237(a)(6)(A)
[1] INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i) (alien smuggling conduct ground of deportation: “Any noncitizen who: before, at or within five years after any entry, knowingly encouraged, induced, assisted, abetted, or aided any other noncitizen to enter or try to enter the United States in violation of law.” (Emphasis supplied)); INA § 237(a)(4)(D), 8 U.S.C. § 1237(a)(4)(D) (genocide conduct ground of deportation).
[2] INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i) (reason to believe illicit trafficker ground of inadmissibility: “Any alien who the consular officer or the Attorney General knows or has reason to believe -- (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so . . . is inadmissible.”) (emphasis supplied); INA § 212(a)(2)(H)(i), 8 U.S.C. § 1182(a)(2)(H)(i) (trafficker in persons ground of inadmissibility: “Any alien who is listed in a report submitted pursuant to section 7108(b) of Title 22, or who the consular officer or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 7102 of Title 22, is inadmissible.”) (emphasis supplied); INA § 212(a)(2)(I), 8 U.S.C. § 1182(a)(2)(I) (money laundering ground of inadmissibility: “knowing aider, abettor, assister, conspirator, or colluder with others”); INA § 237(a)(4)(D), 8 U.S.C. § 1227(a)(4)(D) (genocide conduct ground of inadmissibility); INA § 212(a)(6)(E), 8 U.S.C. § 1182(a)(6)(E) (alien smuggling conduct ground of inadmissibility: “encouraged, induced, assisted, abetted, or aided”); INA § 212(a)(10)(C)(ii), 8 U.S.C. § 1182(a)(10)(C)(ii) (assister of child abductor ground of inadmissibility).
[3] United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001).
[4] 18 U.S.C. § 16(a)(“The term ‘crime of violence’ means—(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . . .”) (emphasis added).
